IN THE CASE OF: BOARD DATE: 7 June 2018 DOCKET NUMBER: AR20170019366 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 June 2018 DOCKET NUMBER: AR20170019366 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the finding of financial liability made against her in the Financial Liability Investigation of Property Loss (FLIPL) Number WEQYAA-17- 25IDBAND-100 be reversed. 2. The applicant states: a. On 6 December 2016, she was assisting a Soldier by moving her unit's 8-passenger van out of a make-shift parking area enclosed by a chain-link fence. This area was not designed for vehicle storage and even experienced drivers have had difficulty moving the vehicles in and out of the area. Despite her most prudent actions (not even hitting the gas pedal, braking frequently, looking all around the vehicle through mirrors and with the naked eye), the van made contact with one of the fence posts while attempting to turn out of the area. b. In an attempt to be very careful, she was watching the front of the vehicle to prevent from hitting anything there; however, an area behind the driver's side door caught the fence post and left a superficial dent and scratch. c. The process to repair the damage was out of her control. The General Services Administration (GSA) approved auto repair shops in the area were quite aware of a $2,500.00 limit that they could charge before a job has to go out to bid. They (the auto-repair shop) gave the unit a quote for approximately $2,404.00. Had she understood that she would be paying for the damage, she would have insisted on finding a shop, and would have found one that wouldn't have charged so much. d. The financial liability officer (FLO) found that she acted as a reasonably prudent person during the incident and recommended no financial liability. It was just an accident that could have happened to anyone in the line of duty. She did everything she could despite lacking experience and maneuvering out of a constricted parking area. e. The appointing authority, Lieutenant Colonel (LTC) TJD, without having ever met her or having evidence, claimed she had acted carelessly and concluded she should pay the entire bill in the amount of $2,404.50. He had no evidence to prove she acted recklessly. f. Her initial rebuttal highlighted lack of negligence and lack of proximate cause, but was never seen by the Brigade Judge Advocate (JAG), and thus was not considered when he made an assessment of legal sufficiency. This in itself is a procedural error that had an adverse effect on her substantial rights. The approving authority didn't have all of the information and proceeded to hold the applicant liable for $1,200.00, which was an improvement, but she did not think this was just. g. She sent a request for reconsideration after receiving this news. It was seen and disapproved, but partial relief was granted. She is still liable for $800. This is unjust because she was helping a Soldier, doing her job, and doing everything she could to care for government equipment. Nonetheless, the van was damaged anyway. She had no say in determining how much was going to be spent to repair the 8-passenger van. Additionally, the Army does not provide a way to hold insurance that would have protected her (or anyone else in this situation) from this liability. h. Financial liability is supposed to be assigned when facts show someone damaged property due to negligence in their responsibility to care for government property. There is no evidence that she was negligent. She attests that she acted with intense prudence while trying to move the van out of a space that was not designed for such use. i. Her unit had been asking for a proper space in which to secure their vehicles for years. The fenced-in area that was being used at the time was borrowed from an organization with buildings next to her unit. Her unit was making the best out of an undesirable situation while being ignored by higher echelons. This resulted in damage to the van and damage to a second vehicle. The unit’s bus, while being operated by experienced drivers, was also damaged. See the statement by Sergeant First Class (SFC) K, 25th Infantry Division (ID) Band Training Noncommissioned Officer in Charge (NCOIC). j. In conclusion, she has developed a feeling of organizational betrayal. Soldiers can serve the Army with their blood and tears, but when property is damaged, Soldiers also have to pay with their money. It is her personal feeling that the senior leaders who were deciding her fate have a very black and white view when it comes to FLIPLs. She has exercised all of her options to avoid losing pay. In addition, she has worked with her local finance office to extend the amount of time that she has to stretch the payment out in case she is still held financially liable. 3. The applicant provides a copy of FLIPL Number WEQYAA-17-25IDBAND-100 and statements of the history of band vehicles. CONSIDERATION OF EVIDENCE: 1. The applicant is Regular Army band member in the rank of staff sergeant assigned to the 25th Infantry Division (ID) Band, Schofield Barracks, HI. 2. On 6 December 2016, the applicant signed out a duty van and attempted to exit a fenced parking area. Misjudging the turning radius and distance from a fence pole, she damaged the duty van on the left side between the driver door and gas tank. 3. In a memorandum for record, dated 9 January 2017, the 25th ID Band commander stated, in part, the van assigned to the 25th ID Band was damaged, and the cost estimated for its repair was $2,404.50. He recommended appointment of a FLIPL Investigating Officer (IO) in order to determine the proximate cause of the damage and the extent of financial liability in order to process payment for repairs and services. 4. In a memorandum, dated 14 March 2017, the FLIPL IO stated, in part: a. He was appointed on 28 February 2017 by Major (MAJ) RNS to conduct a FLIPL to determine if the applicant’s negligence or willful misconduct was the proximate cause of the damage to the band duty van. His findings and recommendation state: b. The applicant was properly licensed to operate a government non-tactical vehicle. According to GSA Policies and Driver's Responsibilities, military operators are required to have an Accident Avoidance Certificate and a valid state driver's license. A military driver's license is required for 12-passenger or higher vehicles. The band duty van was an 8-passenger vehicle, which made the applicant licensed to operate the vehicle since she has the Accident Avoidance Certificate (current within 3 years) and a valid state driver's License. c. The applicant did not have a ground guide when pulling out of the fenced parking area. According to the master driver (SSG C), a ground guide was only required when the vehicle is in reverse. Since the accident, the unit had updated their in-processing developmental counseling (DA Form 4856), which now stated that a ground guide was required when the vehicle was in reverse as well as when vehicles were entering and exiting the vehicle fenced parking area. The unit was unable to provide a copy of the in-processing development counseling that was used prior to the accident. d. Simple negligence is the failure to act as a reasonably prudent person would act under similar circumstances. Although the applicant did not have much experience in operating the duty van, she still acted as a reasonably prudent person. The accident could have occurred with any driver that was operating the duty van. The accident was just a simple mistake. e. Proximate cause is when the person's acts or omissions were the cause that was, in a natural and continuous sequence, unbroken by a new cause. He determined the applicant was not negligent and therefore was not the proximate cause. f. He recommended that all parties be relieved from financial liability of the duty van. The damage to the duty van was just a simple driver's mistake that could have happened to anyone. Negligence was not a factor. He also recommended that the band get with the transportation motor pool and create a unit Standard Operating Procedure that covered the maintenance and use of non-tactical vehicles. 5. On 18 April 2017, the appointing authority for this investigation disagreed with the recommendations provided by the FLIPL IO, and notified the applicant that she was being recommended for charges of financial liability to the Government in the amount of $2,404.50 for damage of Government property. 6. On 8 May 2017, the applicant’s legal assistance attorney rebutted the appointing authority’s FLIPL recommendation. He stated, in part, there were numerous procedural and substantive errors throughout the FLIPL. 7. On 19 May 2017, the Brigade JAG conducted a legal review and determined the investigation was legally sufficient. Sufficient evidence supported the FLO’s factual findings. The appointing authority did not concur with the findings concerning the elements of liability and recommended an assessment of liability. The appointing authority’s substituted findings were legally sufficient and his recommendation for financial liability was consistent therewith. He also indicated the respondent did not submit any rebuttal matters and identified no errors that would have a material adverse effect on any individual’s substantial rights. 8. On 30 May 2017, the 25th ID Artillery (DIVARTY) commander notified the applicant that an approved charge of financial liability was assessed against her in the amount of $1,200.00. 9. An email thread dated 7 June 2017 shows the applicant, her legal assistance attorney, and Master Sergeant (MSG) G discussing if the applicant’s rebuttal was reviewed. MSG G indicated the appointing authority had reviewed the rebuttal and did not change his mind. 10. On 26 July 2017, legal services, on behalf of the applicant, submitted another rebuttal to the DIVARTY commander’s FLIPL decision. He stated, in part, given the significant number of legal errors throughout this FLIPL, the applicant could not justifiably be held financially liable. At the root of the problem was a recurring issue requiring redress by the unit. It would not be resolved by continuing to penalize Soldiers who actually were exercising due care and caution to safely maneuver the vehicles whenever assigned. As such, he respectfully requested that the applicant be released from all liability. 11. On 11 October 2017, the Deputy Commanding General for Support disapproved the applicant’s appeal but granted partial relief of financial liability based on the facts and evidence contained in the file. She was held liable for the amount of $800.00. 12. On 26 January 2018, the Office of the Deputy Chief of Staff, G-4, provided an advisory opinion. The advisory official recommended that the financial liability assessed be reversed. He requested that no monies be deducted from her pay and correction of her records. If deduction had already occurred, they requested reimbursement of funds. a. The IO determined that the applicant should be relieved from financial liability and that the accident was a simple mistake that could have happened to anyone. The legal review conducted on 14 May 2017 stated sufficient evidence supported the IO's factual findings. b. The appointing official non-concurred with the findings of the IO and disapproved his recommendations. In accordance with (IAW) Army Regulation (AR) 735-5 (Property Accountability Policies), paragraph 13-37 (9 November 2016), the appointing official must provide a rationale upon which their decision is based. The approving official did not provide any rationale. The same legal review conducted 14 May 2017 stated that the appointing official's substituted findings were legally sufficient. Since the appointing official did not provide any rationale upon which his decision was made, he did not follow guidance IAW AR 735-5, paragraph 13-37. c. Due to this reversal, the unit must provide a copy of this packet to the installation claims office. According to AR 735-5, paragraph 14-32, when a DD Form 200 finds that the driver or the unit was not negligent, the unit must forward the packet to their installation claims office for processing. REFERENCES: 1. Army Regulation (AR) 735-5 contains concepts and guidelines for establishing and maintaining the Command Supply Discipline Program (CSDP). The CSDP addresses supervisory and/or managerial responsibilities within the supply system from the user to the Army command, Army service component command, and/or direct reporting unit level. AR 710–2 (Supply Policy Below the National Level) outlines the specific requirements for the CSDP. The CSDP is a compilation of existing regulatory requirements brought together for visibility purposes. It is directed at standardizing supply discipline throughout the Army. Also, the CSDP is meant to simplify command, supervisory, and managerial responsibilities. Simplification is accomplished by outlining the various requirements for responsible personnel, by standardizing requirements, and by formalizing follow-up procedures. 2. AR 735-5 defines the following terms: a. Negligence – The failure to act as a reasonably prudent person would have acted under similar circumstances. An act or omission that a reasonably prudent person would not have committed, or omitted, under similar circumstances and which is the proximate cause of the loss of, damage to, or destruction of Government property. Failure to comply with existing laws, regulations, and/or procedures may be considered as evidence of negligence. b. Proximate Cause – The cause, which in a natural and continuous sequence of events unbroken by a new cause, produced the loss or damage. Without this cause, the loss or damage would not have occurred. It is further defined as the primary moving cause, or the predominant cause, from which the loss or damage followed as a natural, direct, and immediate consequence. 3. Chapter 13 of AR 735-5 states that the purpose of a FLIPL is to document the circumstances concerning the loss or damage of Government property and serves as, or support, a voucher for adjusting the property from accountable records. It also documents a charge of financial liability assessed against an individual or entity, or provides for the relief from financial liability. Chapter 13 also states: a. A financial liability officer's responsibility is to determine the cause and value of the loss or damage of Government property listed on the DD Form 200 (Financial Liability Investigation of Property Loss), and to determine if assessment of financial liability is warranted. That determination must be determined from the facts developed during a thorough and impartial investigation. However, before beginning the investigation the financial liability officer must have an understanding of the terms "responsibility, culpability, proximate cause, and loss"; each term impacts upon a determination of financial liability. Individuals may be held financially liable for the loss or damage of Government property if they were negligent or have committed willful misconduct, and their negligence or willful misconduct is the proximate cause of that loss or damage. (1) Responsibility. General responsibility: The type of responsibility a person has for property determines the obligations incurred by that individual for the property. DA Pam 735–5 (Property Accountability Procedures and Financial Liability Officers Guide) presents specific issues the financial liability officer must consider before recommending financial liability. There are five types of responsibility: Command, Supervisory, Direct, Personal, and Custodial. (2) Culpability: Before a person can be held financially liable, the facts must show that they, through negligence or willful misconduct, violated a particular responsibility or duty involving the property. Simple negligence is the absence of due care, by an act or omission of a person which lacks that degree of care for the property that a reasonably prudent person would have taken under similar circumstances, to avoid the loss or damage of Government property. Gross negligence is an extreme departure from due care resulting from an act or omission of a person accountable or responsible for Government property which falls far short of that degree of care for the property that a reasonably prudent person would have taken under similar circumstances. It is accompanied by a reckless, deliberate, or wanton disregard for the foreseeable loss or damage to the property. Whether a person’s acts or omissions constitute negligence depends on the circumstances of each case. Negligence under some circumstances may not reflect negligence under other circumstances. Therefore, fully consider the following factors, as a minimum, when determining the reasonableness of a person’s conduct: the person’s age, experience, physical condition, and special qualifications; the type of responsibility the person had toward the property; the type and nature of the property; the nature, complexity, level of danger, or urgency of the activity ongoing at the time of the loss or damage of the property; the adequacy of supervisory measures or guidance for property control; the feasibility of maintaining close supervision over the property, given the nature and complexity of the organization or activity supervised; and/or the extent supervision could influence the situation considering pressing duties or lack of qualified assistants. Willful misconduct is any intentional wrongful or unlawful act or omission relating to Government property. (3) Proximate Cause: Before holding a person financially liable for a loss to the Government, the facts must clearly show that the person’s conduct was the “proximate” cause of the loss or damage. That is, the person’s acts or omissions were the cause that, in a natural and continuous sequence, unbroken by a new cause, produced the loss or damage, and without which the loss/damage would not have occurred. (4) Loss: Before holding a person financially liable for a loss to the Government, the facts must clearly show that the person’s conduct was the "proximate" cause of the loss or damage. That is, the person’s acts or omissions were the cause that, in a natural and continuous sequence, unbroken by a new cause, produced the loss or damage, and without which the loss or damage would not have occurred. 4. Paragrpah 14-32 (Vehicular Accidents) of AR 735-5 states upon completion of a financial liability investigation that finds a military member or Government employee, through simple negligence, caused an accident involving a Government owned or leased vehicle, the approving authority may waive financial liability or may reduce the amount of financial liability assessed against a member or employee. The waiver to waive or reduce the amount of financial liability charged will be based on the approving authority’s review of all the pertinent information concerning the accident. The approving authority may base the waiver entirely on a vehicle accident report by a military provost marshal or a duly appointed civilian law official, if available. A financial liability investigation based solely on a vehicle accident report will be annotated on DD Form 200, block 9, and state in block 14b. “I have reviewed the information contained in the attached exhibits.” No further investigation is necessary. Include the following additional information on the DD Form 200 for all waivers: (1) Place an “X” in block 14a, approve. (2) To grant a waiver relieving all concerned of financial liability, place the following statement in block 14b, “I relieve all concerned of financial liability from the damage to the property listed in blocks 4 through 6.” DISCUSSION: 1. The applicant contends she should not have been found financially liable in FLIPL Number WEQYAA-17-25IDBAND-100 and her financial liability should be reversed. 2. As the result of the FLIPL, the applicant was found financially liable in the amount of $800.00 for damage to a duty van. The IO recommended that all parties be relieved from financial liability of the Band duty van. The damage to the duty van was just a simple driver's mistake that could have happened to anyone. Negligence was not a factor. 3. The advisory official recommended that the financial liability assessed be reversed. He requested that no monies be deducted from the applicant’s pay and correction of her records. If deduction has already occurred, the advisory official requested reimbursement of funds. 4. The advisory official noted that the legal review stated sufficient evidence supported the IO's factual findings. The appointing official non-concurred with the findings of the IO and disapproved his recommendations. IAW regulatory guidance the appointing official must provide a rationale upon which their decision is based, the approving official did not provide any rationale. The same legal review conducted, states that the appointing official's substituted findings are legally sufficient. Since the appointing official did not provide any rationale upon which his decision was made, he did not follow regulatory guidance. 5. For the purpose of financial liability, by regulation, personal responsibility is defined as the obligation of a person to exercise reasonable and prudent actions to properly use, care for, safeguard, and dispose of all U.S. Government property in his/her physical possession. Based on the facts surrounding the incident, it appears the applicant did take reasonable actions and is not liable when applying the concepts of simple negligence and proximate cause as defined in Army Regulation 735-5. BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing she was found not financially liable as indicated in FLIPL Number WEQYAA-17-25IDBand-100, dated 24 January 2017 * as a result of this correction, the Defense Finance and Accounting Service reimbursing her any liability debt payments that may have collected from her pay I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170019366 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170019366 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2